Tripura

StateCommission

A/23/2018

The Oriental Insurance Co. Ltd. - Complainant(s)

Versus

Smt. Basanti Nath - Opp.Party(s)

Mr. P.Gautam, Mr. Sumit Debnath

05 Dec 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.23.2018

 

 

1. The Oriental Insurance Co. Ltd.,

Represented by its Sr. Divisional Manager,

44/2, Central Road, Kaman Chowmuhani,

West Tripura, Agartala - 799 001.

 

  … … … … Appellant/Opposite Party No.1.

 

Vs

 

1. Smt. Basanti Nath,

W/o Sri Krishna Kumar Nath,

Resident of Laxmipur, Dasda Kanchanpur,

P.O. & P.S. Dasda Kanchanpur,

District - North Tripura.

… … … … Respondent/Complainant.

2. Tata Motors Finance Ltd.,

At Akruti Sme 3^rd Floor,

Khopat Junction, Near Khopat,

Bus Depot, LBS Marg,

Thane West - 400601.

… … … … Respondent/Opposite Party No.2.

 

 

 

Present

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

 

Mr. Narayan Ch. Sharma,

Member,

State Commission

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

 

 

For the Appellant:                                              Mr. Pradyumna Gautam, Adv.

For the Respondent No.1:                                  Mr. Pardip Chakraborty, Adv.

For the Respondent No.2:                                  Absent.

Date of Hearing & Delivery of Judgment:         05.12.2018.

J U D G E M E N T [O R A L]

 

U.B. Saha, J,

The instant appeal is directed against the judgment dated 11.04.2018 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.115 of 2017 whereby and whereunder the learned District Forum directed the appellant, Oriental Insurance Co. Ltd. (hereinafter referred to as opposite party no.1/Insurance Company) to take back the amount paid to respondent no.2 (hereinafter referred to as opposite party no.2) i.e., Tata Motors Finance Ltd. Opposite party no.2 is directed to receive the loan amount Rs.3,40,000/- along with interest accrued during the period when the vehicle was damaged and payment made. The learned District Forum also directed the appellant, opposite party no.1-Insurance Company to pay an amount of Rs.50,000/- to the respondent no.1 (hereinafter referred to as petitioner) as compensation for deficiency of service and also directed the Tata Motors Finance Ltd. to refund the amount to the Insurance Company and the Insurance Company is directed to pay the amount to the petitioner, being legal heir of insured owner of the vehicle Ajit Kumar Nath who shall pay the amount to the Tata Motors Finance Ltd. Oriental Insurance company was also directed to pay Rs.5,000/- to petitioner for deficiency of service.     

2. Heard Mr. Pradyumna Gautam, Ld. Counsel appearing for the appellant, opposite party no.1, Insurance Company Ltd. as well as Mr. Pardip Chakraborty, Ld. Counsel appearing on behalf of the respondent no.1-petitioner. None appears on behalf of the opposite party no.2, Tata Motors Finance Ltd. though the notice was properly served as per speed-post track report.
3. It appears from the order dated 15.09.2018 that the delay of 42 days was condoned and the appeal was admitted to be heard, but due to oversight on 12.11.2018 this Commission passed the order giving liberty to the respondent no.1 i.e. the petitioner to file objection against the prayer for condonation.
4. Today when the matter is taken up, both the Ld. Counsel appearing for the parties pointed out that the matter should be taken up for final disposal as the delay has already been condoned and the appeal has been admitted and not only that, the District Forum record has already been received.
5. Considering the submission of the Ld. Counsel appearing for the parties and after going through the records, we are of the opinion that it would be proper to take up the matter for final disposal. Therefore, as agreed to by the Ld. Counsel appearing for the parties, the appeal is taken up for final disposal at this order stage itself.   
6. Facts of the case needed to be discussed are as follows:-

Petitioner, Smt. Basanti Nath submitted an application under Section 12 of the Consumer Protection Act, 1986 before the learned District Forum alleging that her deceased son Ajit Kumar Nath purchased one vehicle from Rajarshi Motors Pvt. Ltd. taking loan from Tata Motors Finance Ltd., the opposite party no.2. After few months of purchase of the vehicle, the same was completely damaged due to a fire accident. As the said vehicle was insured to the appellant-opposite party no.1, her deceased son placed his claim before the opposite party no.1-Insurance Company. Upon receipt of the claim of her deceased son, the opposite party no.1-Insurance Company asked him to submit some papers and those were produced in his lifetime, but before getting the amount, her son was murdered. Petitioner, Smt. Basanti Nath being the only legal heir of her unmarried deceased son placed the claim before the Oriental Insurance Company, the opposite party no.1, but the opposite party no.1-Insurance Company instead of paying the insured amount to her paid to the opposite party no.2, Tata Motors Finance Ltd., and consequent thereto the Tata Motors Finance Ltd. sent one cheque amounting to Rs.28,300/- in the name of her deceased son Ajit Kumar Nath. As Ajit Kumar Nath was died before receiving the cheque, the same was returned to the opposite party no.2, Tata Motors Finance Ltd. Petitioner being the legal heir of her deceased son Ajit Kumar Nath claimed the loan amount from opposite party no.1, Oriental Insurance Company, but her claim was denied without any cause. Thus she claimed compensation amounting to Rs.5,17,432/-.

7. The learned District Forum after registration of the case issued notice to the opposite parties, the Oriental Insurance Company as well as the Tata Motors Finance Ltd. 
8. Opposite party no.1, Oriental Insurance Company appeared and filed written statement denying the claim of the petitioner. It is stated in their written statement that the vehicle was hypothecated to Tata Motors Finance Ltd. and as per terms and conditions of the hypothecation as well as the Policy in question it has paid the insured amount to the Tata Motors Finance Ltd. It is also stated that it was paid with the consent of the owner of the vehicle after he signed in the discharge voucher. Therefore, opposite party no.1-Insurance Company has no deficiency of service at all.
9. The opposite party no.2, Tata Motors Finance Ltd. did not appear or file any written statement. 
10. The learned District Forum after considering the pleadings of the parties framed the following points for deciding the case.

1. Whether the Tata Motors Finance Ltd. or Oriental Insurance Company Ltd. failed to pay the assessed amount to the petitioner being legal heir of her deceased son, Ajit Kumar Nath?
2. Whether there is deficiency of service by Tata Finance or O.Ps?

11.  Petitioner, the mother of deceased Ajit Kumar Nath submitted Survival-ship Certificate, G.D. Entry, Citizenship Card, Death Certificate of her son Ajit Kumar Nath, Insurance Certificate, Postal Receipts, letters, Sale Certificate, Communication, letter to HDFC Bank, cheque amounting to Rs.28,300/- issued by the Tata Motors Finance Ltd. etc. before the learned District Forum. Petitioner also examined herself as one of the witnesses.
12. On the other hand, the opposite party no.1-Insurance Company declined to give any evidence.
13. The learned District Forum after considering the evidence available before it passed the impugned judgment.
14. Mr. Gautam, Ld. Counsel appearing on behalf of the appellant-opposite party no.1, Insurance Company while urging for setting aside the impugned judgment would contend that even if there was no evidence on behalf of the opposite party no.1, then also the learned District Forum was bound to consider the evidence on record which it failed. He further submits that admittedly the insured vehicle was hypothecated by the deceased son of the petitioner to the opposite party no.2 Tata Motors Finance Ltd. and the opposite party no.1-Insurance Company rightly paid the insured amount to Tata Motors Finance Ltd. as per terms and conditions of the hypothecation. He also submits that during the hypothecation of the insured vehicle actually the owner of the vehicle is the authority to whom the same is hypothecated. According to him, in the instant case, the insured amount was given to the Tata Motors Finance Ltd. on the basis of the discharge receipt issued by the owner of the vehicle i.e. the deceased son of the petitioner at the time of purchasing the policy. He again contended that the learned District Forum on the one hand directed the Tata Motors Finance Ltd., the opposite party no.2 to receive the loan amount of Rs.3,40,000/- along with interest accrued during the period when the vehicle was damaged and payment made, on the other hand, directed the opposite party no.1-Insurance Company to take back the amount paid to opposite party no.2 i.e., Tata Motors Finance Ltd., such a finding is wholly contradicted to each other. He has again submitted that when the appellant-Insurance Company, the opposite party no.1 discharged their liability in accordance with the terms and conditions of the policy and paid the insured amount to the Tata Motors Finance Ltd. to whom the vehicle was hypothecated, then on what basis the learned District Forum in its finding observed that there was deficiency of service.
15. Mr. Chakraborty, Ld. Counsel appearing for the petitioner fairly submits that there are some contradictions in the findings of the impugned judgment passed by the learned District Forum. Thus it would be proper to remand the case after setting aside the impugned judgment to the learned District Forum so that the learned District Forum can decide the matter afresh after hearing the parties.  
16. We have gone through the evidence on record as well as the impugned judgment and after going through the evidence on record we are of the view that the learned District Forum failed to consider the true aspect of the matter and not only that, when the learned District Forum directed the Tata Motors Finance Ltd. to receive the loan amount of Rs.3,40,000/- along with interest accrued during the period when the vehicle was damaged and payment made, then how directed the opposite party no.1-Insurance Company to take back the amount paid to opposite party no.2. It is not clear from the judgment from whom the Tata Motors Finance Ltd. is to receive the loan amount of Rs.3,40,000/- along with interest as directed by the learned District Forum. In the impugned judgment the learned District Forum also directed the opposite party no.2-Tata Motors Finance Ltd. to refund the amount to the opposite party no.1-Oriental Insurance Co. Ltd. and the Oriental Insurance Co. Ltd. is directed to pay the amount to the petitioner being the legal heir of deceased Ajit Kumar Nath who shall pay the amount to the Tata Motors Finance Ltd. Therefore, actually the learned District Forum wanted that the money should be given first to the petitioner by the opposite party no.1-Insurance Company and then the petitioner will pay the money to the Tata Motors Finance Ltd. Such an observation is nothing but rewriting the agreement between the insured and the insurer i.e. the loanee and the Tata Motors Finance Ltd., the opposite party no.2.

Considering the submission of the Ld. Counsel appearing for the parties and the reasons stated above, we are of the view that this is a fit case which should be remanded to the learned District Forum to decide the case afresh after providing opportunity to all the parties. Accordingly, the impugned judgment is set aside and consequent thereto the appeal is allowed and the matter is remanded to the learned District Forum to decide the case afresh after providing opportunity to the parties including fresh evidence, if any. After receipt of this judgment the learned District Forum should issue notice to the parties for their appearance and shall make an attempt to dispose of the case within 45 days from the date of appearance of the parties.

No order as to costs. Send down the records to the learned District Forum, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura